Court File and Parties

COURT FILE NO.: CR16-0023 DATE: 2017-06-29 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – Ronald Reginald Campbell Applicant

COUNSEL: Dave Beaton, for the Crown Michael Haraschuk and Stephanie Farrell, for the Applicant

HEARD: May 29, 30 and 31, 2017

REASONS ON APPLICATION FOR STAY OF PROCEEDINGS

DEL FRATE J.

[1] The applicant brings this application for a stay of proceedings based on breaches of his rights pursuant to s. 7, s. 11(d) and s. 11(b) of the Charter.

[2] The applicant is charged with criminal negligence causing death, the result of improperly using a crane on a truck, contrary to s. 220 (b) of the Criminal Code of Canada, R.S.C. 1985, c. C-46. This incident is alleged to have occurred on June 21, 2012.

[3] On that date, the applicant was attempting to load a utility trailer onto a one-ton truck and trailer so that it could be transported from the place of business to Massey, Ontario. The applicant was using his boom truck, i.e. a commercial truck with a crane mounted to the back, to execute the loading. The boom truck toppled over, pinning Wesley Gatchell and inflicting fatal injuries. The failure to extend the outriggers and stabilizers resulted in the boom truck toppling over.

[4] An investigation was commenced by the OPP and the Ministry of Labour. A summary of what transpired subsequently, and agreed to by both parties is what follows.

Pre-charge delay relevant to ss. 7 and 11(d)

[5] The following chart is reproduced from the applicant’s factum [emphasis omitted]. Arguments with respect to what happened on those dates will be addressed later in these reasons.

June 21, 2012 Mr. Wesley Gatchell passed away. June 21, 2012 Cst. Coultis of the Ontario Provincial Police (“OPP”) attends at the scene and is subsequently told to investigate the matter – she will be the lead investigator for the police investigation June 21, 2012 Jacques Robillard from the Ministry of Labour (“MOL”) attends at the scene June 21, 2012 Cst. Coultis obtains written statements from the two witnesses Arlene Fournier and Phillip Wangh June 21, 2012 Jacques Robillard and Jeff Rivard from the MOL interview the Applicant June 21, 2012 The OPP Identification Unit composed of Sgt. Oprici and Cst. Bertelsen attended at the scene – completed survey and photographs June 22, 2012 Post-mortem examination completed and Cst. Coultis is advised of the cause of death June 22, 2012 Cst. Coultis also advised to consider criminal negligence and has a discussion regarding possible criminal charges with D/Cst. Smith and D/Sgt. Lalonde. Cst. Coultis is told to speak with the Crown Attorney on the matter June 22, 2012 Cst. Coultis speaks with Assistant Crown Attorney Ms. Karen Pritchard, and is advised that criminal negligence charges possibly apply as well as potentially dangerous operation. Cst. Coultis is told to submit a brief for advice from the Crown June 22, 2012 Cst. Coultis cautions the Applicant on both the MOL investigation and possible criminal code charges of criminal negligence and/or dangerous operation of a motor vehicle cause death June 23, 2012 Further witness statements are completed by Cst. Coultis June 24, 2012 Further investigation completed by Cst. Coultis July-August, 2012 MOL investigation continues October 15, 2012 Jacques Robillard advises Cst. Coultis that an advice brief has been submitted to his legal department requesting charges on the incident October 26, 2012 The engineering report of Mr. Rivard is completed April 12, 2013 Cst. Coultis receives an email from Jacques Robillard advising that the brief was before their legal department May 06, 2013 Information for MOL charges sworn May 06, 2013 Cst. Coultis is advised by Jacques Robillard that the Applicant was served with a summons for MOL charges May 30, 2013 Cst. Coultis meets with D/Cst. Smith and D/Sgt. Lalonde. Further discussions to take place with the Crown Attorney regarding possible Criminal Code charges. Cst. Coultis is to proceed with an advice brief to be submitted to the Crown June 2013 Cst. Coultis and D/Cst. Smith consult with D/Sgt. Lalonde and Crown Attorney Ms. Stacy Haner. A brief will be submitted for possible charges pending on this matter. Production Order warrant to be prepared and executed for MOL reports. November 07, 2013 Cst. Coultis submits advice brief to Ms. Haner of the Crown Attorney’s Office December 2013 Cst. Coultis receives advice from Crown Attorney’s to obtain a Production Order Warrant for MOL documents January 2014 Sgt. Oprici retires April 17, 2014 The Applicant pleads guilty to Occupational Health and Safety Act offence May 01, 2014 Cst. Coultis contacts Jacques Robillard who advises Cst. Coultis that the Applicant had pled and received a fine of $3,500.00. Specifically notes that it was not a joint position on punishment May 02, 2014 Cst. Coultis is advised by Jacques Robillard that there will not be an appeal. Cst. Coultis, according to the Confidential Crown Brief Synopsis, determines that the Applicant is to be charged with criminal negligence May 02, 2014 Cst. Coultis speaks with Assistant Crown Attorney, Mr. Jeremy Schaffer. Mr. Schaffer to arrange a three-way phone conversation between himself, the MOL Crown Attorney Dave Macskil, and the OPP regarding any further charges that may be laid on the matter or in the appeal. July 19, 2014 Cst. Coultis receives advice from Ms. Haner who alludes to possible charges on Criminal Code offences. Cst. Coultis to prepare information and a book brief to go before the Courts. Receives response to advice brief submitted in November, 2013 September 12, 2014 Information sworn

[6] The incident occurred June 21, 2012. The criminal charge was laid September 12, 2014. Therefore, the total pre-charge delay relevant to ss. 7 and 11(d) is 26 months and 23 days.

Post-charge delay relevant to s. 11(b)

[7] Vis a vis the submissions on the s. 11(b) argument, the parties agree that the following facts and dates reproduced from the Applicant’s factum apply:

Date and Number of Days Until Next Appearance Characterization per R. v. Jordan Reasons/Notes September 12, 2014 18 days Counted Information is sworn September 29, 2014 29 days Counted To obtain disclosure October 27, 2014 29 days Counted To meet with client and to conduct CPT with Sudbury Crown November 24, 2014 64 days Counted To complete a CPT as unable to connect with Sudbury Crown to date. JPT to be scheduled prior to next court appearance January 26, 2015 38 days Counted To complete JPT March 04, 2015 27 days Counted JPT completed March 30, 2015 15 days Counted Additional disclosure requested, namely, documentation from the MOL required by Mr. Weppler to draft his statement of issues April 13, 2015 43 days Counted Additional disclosure still not received. Dates of August 24 and 25 and November 09, 2015 saved for the preliminary or for a disclosure motion May 25, 2015 29 days Counted Court no longer available for the original dates offered. Adjourned to set dates for the preliminary hearing June 22, 2015 71 days Counted Preliminary hearing dates of December 02 and 03, 2015 are available. Adjourned to confirm whether the Crown is available on these dates August 31, 2015 64 days Counted December 02 and 03, 2015 confirmed for the preliminary hearing November 02, 2015 8 days Deducted as Defence Delay Application to be removed as counsel of record brought by Mr. Weppler. Matter was adjourned to determine whether new counsel, Mr. Keaney, would be available for the previously scheduled preliminary hearing dates November 09, 2015 8 days Counted Mr. Keaney is not available on the previously scheduled preliminary hearing dates. New dates could not be scheduled 1) as unaware of the Crown availability (conflict file so no Crown dates) and 2) Mr. Keaney has not received disclosure yet from the Crown and, therefore, cannot accurately estimate the time or the number of witnesses required for the preliminary hearing. November 16, 2015 15 days Counted Mr. Weppler returned the disclosure to the Crown today. Mr. Keaney has still not received or reviewed same and, therefore, cannot set dates November 30, 2015 15 days Counted Adjourned for Mr. Keaney to review the disclosure and meet with client to discuss same December 14, 2015 52 days Counted Adjourned to conduct JPT on February 03, 2016 February 03, 2016 48 days Counted Adjourned after JPT to next set court date March 21, 2016 15 days Counted Adjourned to find five consecutive days for preliminary hearing April 04, 2016 22 days Counted Adjourned as still attempting to find preliminary hearing dates April 25, 2016 8 days Counted Adjourned as have Crown counsel availability but do not have a judge available as of yet May 02, 2016 Counted Adjourned as still do not have judge availability May 16, 2016 173 days Counted November 01, 02, 03 and 04, 2016 confirmed for the preliminary hearing November 03, 2016 Counted Committal established and adjourned to set date court in Superior Court of Justice December 08, 2016 40 days Counted Adjourned to January 16, 2017 for the judicial pre-trial. This was the first judicial pre-trial date available. January 16, 2017 43 days Counted Judicial pre-trial. Adjourned to set date court February 27, 2017 243 days Counted Pre-trial dates of May 31, June 01, 02 and September 19, 2017 scheduled. Trial dates of October 16-October 27, 2017 set aside for trial

[8] The charge was laid September 12, 2014. The anticipated trial end date is October 27, 2017. Therefore, the total post-charge delay is 3 years, 1 month and 16 days, or 37 months and 16 days.

[9] And, the total delay from the day of the incident is 5 years, 4 months and 7 days, or 64 months and 7 days.

The position of the applicant

[10] The applicant submits that the failure of the Crown to proceed in an expeditious manner violates ss. 7 and 11(d) of the Charter. The Crown’s failures have been categorized as follows:

(a) The failure to lay any criminal charges for 26 months and 23 days, even though reasonable and probable grounds were established within three days of the incident;

(b) The failure by Cst. Coultis to submit a brief for advice from the Crown on June 22, 2012 and again on May 30, 2013;

(c) The delay of Cst. Coultis in submitting the advice brief to the Crown Attorney’s office till November 7, 2013;

(d) The failure to obtain the Production Order Warrant for the Ministry of Labour documents from December 2013 till May 8, 2015 even though the information was sworn on September 12, 2014;

(e) The failure to prioritize and proceed in an expeditious fashion;

(f) The failure to proceed with the criminal charges and the Occupational Health and Safety Act charges in tandem as opposed to laying the criminal charges after the applicant had pled guilty to the provincial offences charges.

[11] As a result of these failures, the applicant has been prejudiced in that his trial will take place some five years after the events giving rise to the charges occurred. Not only has this delay resulted in one witness dying, but the memories and recollections of the other witnesses have been affected by the passage of time.

[12] Further, as a result of the manner in which the Crown has chosen to proceed, the applicant is now facing two trials for the one incident. This has affected him personally, resulting in emotional turmoil, trauma, and financial expenses.

[13] Although a delay in laying charges may be necessary in certain circumstances, such a delay is not warranted in this case since the facts of the investigation were not complex. Therefore, the charge of criminal negligence causing death ought to be stayed

[14] The applicant also submits that the failure of the Crown to proceed in an expeditious manner violates s. 11(b) of the Charter. The delay exceeds the presumptive ceiling set out in Jordan. This too supports a stay of the criminal negligence causing death charge.

Position of the Crown

[15] The respondent Crown argues that it is clear law that the Crown has the outright decision-making in investigative and prosecutorial processes. In this case, the Crown decided to wait until the Ministry of Labour investigation pursuant to the Occupational Health and Safety Act, R.S.O. 1990, c. O.1, was complete before proceeding with criminal negligence charges.

[16] Since the incident occurred at the workplace, the Ministry of Labour became involved. The Occupational Health and Safety Act grants the Ministry much wider powers of investigation without the necessity of a search warrant than under criminal investigation by the OPP. For instance, the Ministry has the right pursuant to s. 54(1) of the Occupational Health and Safety Act, to enter in or upon any workplace at any time and without warrant or notice, seize any equipment, require production of documents, and conduct testing, among other powers.

[17] While the OPP had the ability to obtain the same information, it would have to be gathered pursuant to a search warrant. The decision was made the day of the incident that the Ministry would conduct the investigation and the OPP would assist. Accordingly, the OPP took statements from various witnesses, but did not have access to all of the evidence collected by the Ministry.

[18] Prior to the completion of the Ministry investigation, Cst. Coultis requested the Ministry file. However, she was on sick leave in late summer of 2013 and again in January to March of 2015. OPP practice dictates that unless there is an extended leave, there would be no reason to re-assign this file to another officer. Thus the delay in obtaining the production order for the Ministry file was complicated by unforeseen medical circumstances.

[19] Ultimately, as a result of the decision not to take a lead role but to assist the Ministry with their investigation, the OPP was kept informed of how the Ministry investigation was proceeding, including the charges laid under the Occupational Health and Safety Act. Once the Ministry was finished with its handling of the case, in consultation with the Crown Attorney, a charge of criminal negligence was laid.

[20] Thus, the respondent Crown argues it acted expeditiously in the factual context of the case.

[21] The respondent Crown then submits that pre-trial delay in the laying of the charge is irrelevant since the criminal charge has no limitation.

[22] The Crown agrees that when the charges or counts are substantially the same a stay is appropriate. However, this requires both a factual and legal nexus. In this case it is important to note that even though there is a factual nexus between the Occupational Health and Safety Act charges and the Criminal Code charges, there is no legal connection between them. The “delict” of criminal negligence is distinct from the regulatory aspect of the Occupational Health and Safety Act; although the informations arise from the same event and victim, the charges address different societal interests and conduct.

[23] Furthermore, it would have been very difficult for these charges to proceed in tandem since the Occupational Health and Safety Act charges would be conducted summarily whereas the criminal negligence charge would have to proceed by indictment. In all likelihood, unless the parties agreed to have the matters tried together, two trials would have been required regardless.

[24] The respondent Crown submits that the applicant’s contention that the Crown acted in bad faith is at most, rank speculation. The onus is on the applicant to show bad faith, or that prejudice resulted based from pre-charge delay.

[25] Lastly, the respondent Crown submits that there has been no evidence of prejudice presented by the applicant. The factors that he outlines in his affidavit are common to anyone who is facing a criminal charge. Accordingly, this application, based on pre-charge delay, ought to be dismissed.

[26] Regarding the post-charge delay, the respondent Crown argues that the applicant has mis-characterized some aspects of the delay outlined in the chronology above. Specifically, the applicant failed to appropriately calculate the defence delay associated with the removal of his first counsel.

[27] The initial defence counsel should have been aware of a possible conflict as soon as they got on record for the criminal charges, based on prior knowledge of a Ministry brief related to the Occupational Health and Safety Act charges. Thus, the period of time from when initial defence counsel got on record in September 2014 to when they got off record in November 2015 should be counted as defence delay.

[28] Accordingly, once the 400 days of defence delay are correctly deducted, the net delay is 24 months and 11 days, which falls below the presumptive ceiling set out in Jordan.

Analysis of sections 7 and 11(d)

Legal principles

[29] Section 7 of the Charter guarantees that:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[30] Section 11(d) of the Charter guarantees that:

Any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.

[31] These entrenched protections mean that a stay of proceedings is available in certain situations. For example, in Regina v. Young, 46 O.R. (2d) 520, Dubin J.A. stated at p. 551:

I am satisfied on the basis of the authorities that I have set forth above that there is a residual discretion in a trial court judge to stay a proceedings where compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community’s sense of fair play and decency and to prevent the abuse of the court’s process through oppressive or vexatious proceedings. It is a power, however, of special application which can only be exercised in the clearest of cases.

[32] The Supreme Court of Canada in R. v. Hunt, 2017 SCC 25 recently confirmed the principle that a stay of proceedings for pre-charge delay is permitted, when it adopted the reasons of the dissenting judge in the Court of Appeal decision reported at 2016 [NJ No. 372 NLCA 61], 33 CR(7321). However, such relief must be exercised in the clearest of cases.

[33] As stated by Hoegg J.A., his dissent at paragraph 99:

The notion that delay, in the absence of jeopardy to fair trial rights, Crown misconduct, or oppressive Crown conduct, can result in the staying of serious criminal charges, is very disturbing to me. It affectively means that charges laid after a lengthy investigation cannot be prosecuted on their merits regardless of their complexity and volume. Complexity and volume involve time. It follows that the more complicated and voluminous the offence, the more likely that charges arising from it will be stayed. Such a result rewards sophisticated criminal conduct, and effectively imposes a judicially determined limitation period on charges which take a long time to investigate simply because it is too difficult, time-consuming, and/or expensive to do so.

[34] Hunt also states that an applicant must establish the pre-charge delay on a balance of probabilities. Once the onus is discharged, then the Crown must explain the unreasonable delay.

[35] Although the courts are not to interfere with the prosecutorial discretion of how to proceed, there is an obligation on the part of the state to investigate and proceed in an expeditious manner. As noted by the Court of Appeal in Young, at p. 551:

…there is a distinction to be drawn where the institution of the proceedings is valid and the only issue is delay prejudicial to the accused, and the case where executive action leading to the institution of the proceedings is offensive to the principles upon which the administration of justice is conducted by the courts.

[36] Subsequent decisions outline the principles that Crown and the police have a duty to prioritize their investigations especially in cases where the information is readily available: see R. v. Clarke, 2016 NLTD(G) 13, 379 Nfld. & P.E.I.R. 103, R. v. T.(T.), 2009 ONCJ 86, and R. v. Doston, 2008 NSSC 417, 277 N.S.R. (2d) 211. Investigations must be completed in a reasonable period of time. This is especially important in cases where the reasonable and probable grounds are obvious. Lengthy delays must be explained by the Crown. Failure to do so may lead to a finding of abuse of process since the delay is prejudicial to the accused.

[37] As stated by the Supreme Court of Canada in R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566, at para. 41:

Under the residual category of cases, prejudice to the accused’s interests, although relevant is not determinative. Of course, in most cases the accused will need to demonstrate that he or she was prejudiced by the prosecutorial conduct in some significant way to successfully make out an abuse of process claim. But prejudice under the residual category of cases is better conceptualized as an act tending to undermine society’s expectations of fairness in the administration of justice. This essential balancing character of abuse of process under the residual category of cases was well captured by the words of L’Heureux-Dubé J. in R. v. Conway, [1989] 1 S. C.R. 1659 (SCC). She stated the following:

Under the doctrine of abuse of process, the unfair or oppressive treatment of the appellant disentitles the Crown to carry on with the prosecution of the charge. The prosecution is set aside, not on the merits (see Jewitt, supra, at page 148), but because it is tainted to such a degree that to allow it to proceed would tarnish the integrity of the court. The doctrine is one of the safeguards designed to ensure “that the repression of crime through the conviction of the guilty is done in a way which reflects our fundamental values as a society” (Rothman v. The Queen, [1981] 1 S. C.R. 640 at 689, per Lamer J.)” It acknowledges that courts must have the respect and support of the community in order that the administration of criminal justice may properly fulfill its function. Consequently, where the affront to fair play and decency is disproportionate to the societal interest in the effective prosecution of criminal cases, then the administration of justice is best served by staying the proceedings.

[38] And, in R. v. Kalanj, [1989] 1 S.C.R. 1594, the Supreme Court of Canada stated, at p. 1610:

It has been considered that special circumstances could arise which, in the interests of justice, would require some consideration of pre-charge delay because of prejudice which could result from its occurrence. In my view, however, the exceptional cases should be dealt with by reliance on the general rules of law and, where necessary, the other sections of the Charter. This approach would take account of and meet the concerns caused by the possibility of pre-charge delays. Delays which occur at the pre-charge stage are not immune from the law outside the scope of s. 11(b). The Criminal Code itself in ss. 577(3) and 737(1) protects the right to make full answer and defence should it be prejudiced by pre-charge delay. Section 455.1 provides for a prompt swearing of an information where an appearance notice has been issued or an accused has been released from custody under ss. 452 or 453. As well, the doctrine of abuse of process may be called in aid and as early as 1844 the common law demonstrated that it was capable of dealing with pre-information delays.

[39] Trial Courts have considered the prejudice from the failure to proceed in an expeditious fashion in cases such as R. v. Kessler, [2003] O.J. No. 2108 (S.C.), R. v. Kroetsch, [1991] A.J. No. 1259 (Q.B.), R. v. C.M.B., 2003 BCPC 517, and R. v. Box, 118 Sask. R. 241 (Q.B.). The jurisprudence establishes that an accused may be prejudiced by a witnesses dying or witnesses’ inability to recollect what transpired even though they may refer to their written statements, if in fact statements had been obtained. As well, the emotional turmoil of the accused and financial devastation that may occur if he or she has to defend two separate charges arising from the same set of facts may be considered.

Application

[40] Many, if not all, of the principles enunciated apply to the case at hand. The evidence is clear that both the Ministry of Labour and the OPP had concluded within three days of the incident that they had reasonable and probable grounds to lay charges. The Ministry proceeded to lay charges on May 6, 2013, approximately 11 months following the incident. On April 17, 2014, approximately 11 months following the laying of the charges, the applicant pled guilty to one of the charges under the Occupational Health and Safety Act. Then on September 12, 2014, five months after the plea of guilt, the charge of criminal negligence was laid. In total, 26 months and 23 days expired from the date of the incident to the laying of the criminal negligence charge.

[41] The respondent Crown attempts to explain the delay by stating that the Ministry of Labour had carriage of the investigation and the Crown was waiting to see what was going to happen. Once there was a plea, the Crown concluded that it was appropriate to lay the criminal negligence charge so they did. Since it is an indictable offence, no limitation period applies. The accused has not shown evidence of prejudice which any other individual facing criminal charges would be expected to experience.

[42] I cannot accept that proposition. Firstly, there was no reason why the OPP investigation could not have proceeded in tandem with the investigation of the Ministry of Labour. Though the Ministry has greater powers of search and seizure, there was nothing precluding the OPP from obtaining a search warrant so that the same evidence could be retrieved. A lack of expertise performing such investigations is not a valid explanation. The police could have obtained the Production Order much sooner and there was no necessity for waiting until after the applicant had pled guilty to the offence under the Occupational Health and Safety Act.

[43] Furthermore, it is obvious that the Ministry was cooperating with the investigation of the OPP since within seven days of Constable Coultis obtaining the Production Order; the entire file was forwarded to the OPP.

[44] In my view, the applicant has been prejudiced by the pre-charge delay in laying the criminal negligence charge. Not only is there the additional turmoil associated with prolonging this matter, but one has to consider the financial cost of defending two separate charges arising from the same facts. Some five years later, he still does not have any finality to this incident.

[45] Even though the charges arise from the same factual situations, the applicable legal principles are different. However, what makes it an apparent unfairness to the accused is the sequence which the charges were laid. The Crown could have laid the criminal charges at the same time as the Occupational Health and Safety Act charges. Both sets of charges could have proceeded in tandem.

[46] At the very least, if it was the Crown’s intention from the beginning that criminal charges would be laid, a more emphatic notice should have been given to the applicant. It appears that the only notice of possible Criminal Code charges given to the applicant was on June 22, 2012, when Constable Coultis cautioned the applicant.

[47] The accused should have a sense of security that when he or she makes a decision on a set of charges, that decision resolves the case in its entirety. He or she should not be under a sense of false security. An expectation of finality is not unreasonable. To have further charges laid after such a lengthy period of time causes me to find a degree of unfairness which the community would not accept.

[48] Of more importance, is the potential for prejudice arising from the following two factors. First, the accused pled guilty to the charge under the Occupational Health and Safety Act. Should such evidence be led and be admissible, considering that this is a jury trial, the potential for prejudice looms large in spite of whatever mid-trial and final instructions may be given.

[49] Second, there is the death of the witness Robillard who the applicant claims to be a material witness. Though Robillard prepared a report, the Applicant did not have the opportunity to question him at the preliminary. The report on its own, even if admissible, could cause trial unfairness. The Crown and the OPP could have considered obtaining another report but chose not to do so. The writer of the new report would have been available for cross-examination on what findings he or she may have opined. At least, the potential for prejudice to the applicant would be reduced.

[50] I cannot agree with the applicant’s submission that the Crown and the OPP would have had ulterior motives for laying the criminal charges, in view of what the Crown’s office may have believed was a “light sentence”. I do not make such a finding. However, I do find that the police’s uncertainty in laying the criminal charges after the plea to the provincial offences constitutes a breach of the sense of fair play, an act which offends the community. This is so especially when one considers that this was not a detailed or sophisticated investigation. As stated previously all of the evidence except for the experts’ reports were obtained early on. Once the first reports were available, the OPP did not avail itself of a production order until after the applicant had pled guilty on April 17, 2014.

[51] Accordingly, given the above analysis, in my view there is a breach pursuant to s. 7 and 11(d) of the Charter. A stay of the proceedings on the criminal negligence charge is granted.

Analysis of section 11(b)

[52] Having found that the charge ought to be stayed for the reasons set out, I do not intend to examine in great detail whether there is a s. 11(b) breach. This is a transitional case. Accordingly, I have considered the decision of R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 613, R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433, and numerous other Superior Court decisions. I have also considered the Supreme Court of Canada’s most recent comment on delay in R. v. Cody, 2017 SCC 31. In my view, keeping in mind the principles enunciated in those decisions, I would have dismissed the relief sought. Though the net post-charge delay as presented by the applicant amounts to 37 months and 8 days, I would have assessed a greater defence delay, resulting in a net delay that falls below the presumptive ceiling.

[53] In particular, it is disingenuous on the part of the applicant not to consider a greater deduction than eight days for the period of September 12, 2014, the date when the criminal information was sworn, till November 2, 2015, the date when the applicant’s first counsel removed himself from the record for conflict.

[54] The conflict should have been obvious much sooner than when initial defence counsel brought the application to remove himself. He knew or ought to have known that his involvement by attending at the site of the accident on the day in question and being present when his client was giving a statement to the Ministry, making notes of the interview and giving his notes to the Ministry are all factors that should have raised the spectre of a potential conflict. The Rules of Professional Conduct of the Law Society of Upper Canada are clear and obvious regarding potential conflicts as grounds for discontinuing a solicitor-client relationship. There is an ongoing obligation on counsel to consider his or her ability to continue acting if there is a potential conflict.

[55] Although the period from the laying of the charge to initial defence counsel’s removal from the record amounted to approximately 14 months, I would have allotted eight months as defence delay since he ought to have realized that a potential conflict was a real possibility after requesting additional disclosure from the Ministry in March of 2015. However, the application to remove counsel was not brought until November 2, 2015.

[56] I would also have deducted an additional six months as defence delay for the period when new counsel was retained to the new date of the preliminary hearing (November 2015 to May 2016). It was clear by the time new counsel became involved that the preliminary inquiry would have to be adjourned in view of counsel’s unavailability and time was needed to prepare.

[57] The applicant submits that an accused has the right to choose his own counsel, and if counsel is unavailable that should not be considered defence delay.

[58] The choice of counsel can be accommodated if the attendant delay associated with that choice is not attributed to the Crown or to the administration of justice. I accept the theory of choice of counsel. However, I am not convinced that a choice of counsel, trumps the right of trial within a reasonable time. An accused should be aware that counsel of choice may not be available due to his or her schedule, thus the matter will not proceed as quickly.

[59] If an accused is insistent in that particular counsel, who is not available, then surely the delay associated with waiting for the availability of that counsel should not be borne by the Crown or by the administration of justice. As stated in Jordan and Cody, all parties must cooperate to ensure that the administration of justice flows smoothly and expeditiously. That purpose may require concessions to be made by all involved.

[60] In conclusion, I would have found that there was total delay of 37 months and 16 days, less 14 months of defence delay, equalling a net delay of 23 months and 16 days. This delay would not have exceeded the time limits enunciated in Jordan and reaffirmed in Cody. Accordingly, I would have dismissed that relief.

[61] Order to issue: The charge of criminal negligence be stayed for the reasons set out.

The Honourable Mr. Justice Robert G.S. Del Frate Released: June 29, 2017